California's Medical Marijuana Law - Just a Smokescreen?

The medical marijuana debate is gathering steam in California, as two disparate engines are catapulting headlong down parallel paths that appear destined to collide in the distance. The impending collision could chart the future course on legalization of marijuana in America.

In just the past year, California has seen a proliferation of "pot doc&quot
; clinics sprouting up like wild mushrooms. And prospective medical marijuana patients are flocking to these clinics like Deadheads to a Furthur concert.

Meanwhile, California cities and counties have been racing to enact ordinances banning or placing moratoria on medical marijuana dispensaries, the same outlets that supply legal cannabis to medical marijuana patients.

As usual, the courts will be instrumental in deciding the issues.

First, some background.

In 1996, California voters passed Proposition 215, otherwise known as "the Compassionate Use Act," which provided limited legal protection to individuals and their caregivers to cultivate and use small amounts of marijuana for medicinal purposes, so long as they had a physician's "written recommendation." Serious illnesses include cancer, anorexia, AIDS, chronic pain, spasticity, glaucoma, arthritis, migraine or any other illness for which marijuana provides relief. Marijuana has been found to successfully relieve the nausea associated with cancer remediation, while also serving as an appetite stimulant.

In 2003, the California Legislature passed SB420, which started a program for the voluntary registration of cannabis patients through a statewide identification card system. The cards, issued through the California Department of Public Health (CDPH), were intended to help law enforcement identify and verify who is legally authorized to possess, cultivate and transport cannabis in certain circumstances. The law also set possession guidelines, and authorized cannabis patients to organize cooperatives or collectives, in order to cultivate cannabis for medicinal usage.

The growing list of medical physicians and clinics specializing in writing "recommendations" to qualified medical marijuana patients now numbers at least 175 in California. Leading the way is San Francisco-based MediCann with 20 clinics throughout the state, followed by southern California-based Marijuana Medicine Evaluation Centers (MMEC) with 10 outlets.

A frequent complaint issued by law enforcement is how medical marijuana clinics and their doctors write recommendations for "almost anyone with any malady."

On the MMEC Web site are guidelines for a patient to receive a written recommendation for medical cannabis, including reviewing a patient's past medical records and providing a thorough, on-site evaluation by a medical doctor.

Pot docs' fees range from $50 - $250, and MMEC guarantees a money-back return if the patient does not warrant a written recommendation. MMEC physicians have the prerogative of issuing a temporary three-month recommendation if they feel a patient needs to meet further requirements in proving his or her medical status, contingent on issuing a full one-year recommendation.

In addition to the formal written recommendation, MMEC (like MediCann) provides its own patient verification ID card (not to be confused with the county-authorized ID card). In addition, MMEC provides a pocket physician's statement, which is conveniently formatted for one's pocket, wallet or purse, plus MMEC provides a glovebox physician's statement. All three items complement the actual physician's recommendation letter with a "wet" signature.

With a physician's recommendation in hand, a cannabis patient can legally purchase or grow pot. If the patient takes the letter and registers at a local county public health department, a medical marijuana identification card will be issued at a cost of $66 ($33 for Medi-Cal patients or veterans). The county-issued ID cards provide law enforcement with a "clear line" of distinction if they come upon a cannabis patient carrying pot. The CDPH has issued 35,337 medical marijuana ID cards since the program's inception.

Under SB420, each county sets the permissible amounts a patient may cultivate. In most California counties, the amount is six mature plants or 12 immature marijuana plants, plus eight ounces of bud. In Humboldt and Sonoma counties, however, the maximum is 30 plants with up to 100 square feet of garden canopy and up to three pounds of bud.

Passage of SB420 also stimulated a stampede of medical marijuana dispensaries, otherwise known as "cannabis clubs." This movement prompted city and county officials throughout the state - 120 California cities and eight counties - to issue ordinances prohibiting the co-ops and collectives from establishing medical marijuana dispensaries in their jurisdictions.

The city of Los Angeles, with approximately 800 dispensaries in operation, this week is considering an ordinance that would effectively ban medical marijuana dispensaries by limiting the co-op/collective's number of plants to 100 and prohibiting over-the-counter sales. According to California NORML, a leading advocacy group for medicinal marijuana, this could result in a loss of $36 million to $74 million in sales tax revenue.

The city of Sebastopol in Sonoma County recently approved the future expansion of its sole dispensary. Larry Robinson, a long-time member of the Sebastopol City Council, said, "l've been very pleasantly surprised. There have been no incidents that have caused problems for us." Robinson noted that the co-op is generating approximately $50,000 in tax revenue, "which is more than we were getting from the auto dealership that used to be located in that space."

This past summer, the city of Sacramento issued a moratorium on dispensaries, but a number of new enterprises made it in before the deadline, including a new collective called A Therapeutic Alternative. The collective's director, Jeanne (who would only give her first name), said the group' goal is to be a law-abiding "good neighbor," while providing top-quality cannabis to members.

Members patronize the midtown dispensary from as far away as Redding and the Sierra foothills. On any given day, the collective offers up to two dozen varieties of cannabis, ranging in price from $10 per gram to $380 per ounce. Jeanne buys buds from trusted members of her collective; part of the "closed loop" described in the attorney general's guidelines.

"Mazar" is her favorite upper echelon, potent pot ($50 for one-eighth ounce), which is especially effective for cancer patients who experience "bone ache" when transitioning from chemotherapy to radiation.

"I believe we're making history," she says about the co-ops and collectives like hers.

Some law enforcement officers and city officials believe that medical cannabis dispensaries create "adverse secondary effects," which can lead to intoxicated drivers, illegal drug trafficking and increased burglaries and/or robberies at or near the locations.

Their position is supported by a white paper issued in April 2009 by the California Police Chiefs Association's Task Force on Marijuana Dispensaries, which stated:
"Marijuana dispensaries are commonly large money-making enterprises that will sell marijuana to most anyone who produces a physician's written recommendation for its medical use. These recommendations can be had by paying unscrupulous physicians a fee and claiming to have most any malady, even headaches.... These operations have been tied to organized criminal gangs, foster large grow operations, and are often multimillion-dollar profit centers."

The paper cites numerous examples of illegal activities that have occurred in this decade under the guise of lawful medical marijuana enterprises. Underlying their premise is the fact that marijuana is rated as a Schedule I narcotic by the federal government, and until that is changed, the cooperatives and collectives, and their resultant dispensaries, are illegal enterprises.

The police chiefs' opinion followed a series of guidelines issued by California Attorney General Jerry Brown in August 2008 that reiterated medical marijuana cooperatives and collectives are permissible so long as they abide by state law. For instance, they must be licensed, pay taxes and retain nonprofit status.

On the key subject of dispensaries, Brown's guidelines would appear clear: "It is the opinion of this Office, that a properly organized and operated collective or cooperative that dispenses medical marijuana through a storefront may be lawful under California law ..."

It should be noted that the guidelines explicitly state that neither of California's laws on cannabis conflict with the federal government's Controlled Substances Act, because "California did not 'legalize' medical marijuana, but instead exercised the state's reserved powers to not punish certain marijuana offenses under state law when a physician has recommended its use to treat a serious medical condition." (Emphasis mine)

"Although we think the attorney general's guidelines are clear that they allow for some medical marijuana dispensaries, we'd like the attorney general to be more explicit with regarding how localities view the cooperative-collective guidelines," says Joe Elford, chief counsel for Americans for Safe Access.

Despite the bans set by cities and counties, several recent judicial developments point favorably to lawfully operated cannabis clubs.

Last year, The US Supreme Court declined to review a lower court decision that ordered Garden Grove, California, police to return marijuana seized from a medical marijuana patient. The refusal to hear the appeal meant the high court accepted the state appeals court's reasoning that California's medical marijuana law is not preempted by federal law.

The California Supreme Court recently heard the case The People vs. Kelly, which had overturned the plant and leaf limits legislated by SB420. In a rare show of agreement, both sides argued that the state had no right to set limits on the amount of medicinal pot held by a patient, while also agreeing that the ID card concept should not be overturned. The Supreme Court is expected to rule by Christmas.

Then in October came the sweeping news from US Attorney General Eric Holder's office, which issued a memo advising states attorneys general that "... the pursuit of these priorities (illegal trafficking of drugs) should not focus federal resources in your States on individuals whose actions are in clear and unambiguous compliance with existing state laws providing for the medical use of marijuana." This represented a dramatic reversal from the Bush administration, and brought a huge sigh of relief from the medical marijuana community.

Capping the attorney's general's announcement, last week the American Medical Association reversed its position by urging the federal government to reclassify marijuana from the list of Schedule I drugs, which include heroin and LSD. The association noted that scant testing has been done on cannabis and recommends more scientifically rigorous research be done.

These head-spinning developments would seem to indicate the dispensary concept may survive yet in California.

Meanwhile, an increasing number of states have adopted similar medical marijuana laws. In this past election, Maine became the 14th state to permit medicinal pot, and the fifth state to allow retail pot dispensaries.